Facts

On 7 and 17 October 2002, M. AG (predecessor of [N. AG]) sold a plot of land located in C. and two plots of land located in D. to Y. GmbH. On 7 November 2005, the bankruptcy of [N. AG] was opened and, on 16 June 2006, the claims of X. AG against [Y. GmbH] regarding the land sales were transferred. On 17 January 2007, X. AG filed a lawsuit seeking payment of 420,000 Swiss francs with 5% interest since 1 November 2002. Subsequently, X. AG amended its claim on 19 December 2007 to request that the three plots of land be reintegrated into the bankruptcy estate and made available for sale, or alternatively, that [Y. GmbH] pay 420,000 Swiss francs with 5% interest since 1 November 2002.

[Y. GmbH] argued that the amendment of the claim was procedurally admissible, but that the claim for restitution of the land was time-barred under Article 292, paragraph 2 DEBA. The court of first instance rejected the time limitation defense and ordered that the other claims be judged in a final judgment. [Y. GmbH] appealed and requested that the time limitation defense be admitted. On 4 March 2009, the cantonal court rejected the request.

X. AG filed a civil law appeal on 27 April 2009, requesting that the case be remanded to the court of first instance to continue the revocation proceedings. The Federal Court admitted the appeal.

Considerations

The Federal Court considered that the revocatory action under Articles 285 et seq. DEBA aims to reconstitute the assets subject to enforcement, as if the challenged act had not existed. The revocation action aims to reintegrate the assets into the bankruptcy estate, as if the sale had not taken place.

The Federal Court examined the question of whether the amendment of X. AG's claim of 19 December 2007 constituted a new claim that could have been time-barred under Article 292, paragraph 2 DEBA. It considered that the initial claim of 17 January 2007 had already alleged that the claimed amount was based on a revocable act, and that the amendment of the claim had not introduced new elements.

The Federal Court concluded that the time limitation defense…